Boston Injury Lawyer Blog

As a Massachusetts personal injury lawyer, we have represented many people who are injured as a result of illegal and negligent serving of alcohol to people who go on to injure an innocent third person. When the host, or provider, of the alcohol can be found responsible, that is called social host liability in Massachusetts.

In Massachusetts, if you can prove that a liquor store sold alcohol to someone already intoxicated, or that a bartender served to such a person, you can show that they breached their duty to third persons, out there on the road, and hold the seller or server responsible for civil money damages.

What about when the alcohol was served at a party? Since 1986 Massachusetts's courts have ruled that if you supply the alcohol, you may be held responsible.
In that year the Supreme Judicial Court held, in McGuiggan v. New England Telephone, that from now on "a relevant consideration will be whether the social host knew or reasonably should have known that the intoxicated guest might presently operate a motor vehicle" before serving him alcohol. This decision changed social host law in Massachusetts dramatically.

The cases have not held that there is a duty to a guest, who becomes intoxicated, and then injures himself. In 2001 the Court decided Panagakos v. Walsh, a case in which a minor was served at a bar and subsequently was killed while walking along the highway. The estate sued the bar and deceased's companions who were of age and facilitated his use of a false identification. The Court cited Hamilton v. Ganias (1994) as standing for the proposition that if one is an "adult" he or she is responsible for their own actions. In Sampson v. MacDougal, a 2004 case, it was determined that even though the injured party was a minor, age 18, the Court would not impose liability on the homeowner even though it was the homeowner who served the minor alcohol, reasoning that the 18 year old was an "adult" and was in the best position to prevent harm to himself.

If an 18 year old is an adult, why can't s/he buy alcohol? The Courts, in these various decisions, point out that it is for the legislature to make the laws; their job is to interpret the laws.

In a decision handed down last week, February 2012, Juliano vs. Simpson the Supreme Judicial Court held that notwithstanding the fact that there was a teenage drinking party, if the host did not supply the alcohol, the host can not be held liable to third parties injured by an intoxicated guest, even if the third party was a 16 year old guest. The Court said, "liability attaches only where a social host either serves alcohol or exercises effective control over the supply of alcohol." The reasoning was, essentially, that the host could not control the amount of consumption; the host was like a bartender, who would only be responsible if he or she had some control over what and how much a customer/guest was consuming.

None of the above should be interpreted as license to serve or allow minors to have alcohol; or to be intentionally absent from hosting, knowing about a party. The facts in each case are different, and when there are horrendous injuries, are there often are when mixing alcohol and motor vehicles in Massachusetts the victims will pursue all forms of discovery, which often lead to clear responsibility to the hosts.

We represent victims of personal injury in Massachusetts. In most cases the insurance company for the defendant will undertake an investigation of Massachusetts accidents. If it is a small case, with a claimant unknown to the insurance world (someone who has not filed many claims) they may not put much effort into their investigation. However, what if it is a large claim? What if it is contested? Can they use social media to investigate victims?

Insurance companies and their attorneys have vast resources. And they don't hesitate to use them. In a personal injury lawsuit, they have the right to have the victim examined by their insurance doctors. They have the right to ask written questions and to have their insurance trial attorney require oral testimony by deposition, from "day to day" to have their questions answers. They can send an investigator to video you going in and out of your house, at the mall, and going to work. And they do all of these things regularly.

With all of the above, you have some control as to how you present. You prepare for your deposition with your experienced Massachusetts injury attorney. You bring your medical records to the insurance doctor for his or her review in conjunction with your exam. You learn that the insurance investigators may be videoing you so you act accordingly. How do you know how to act with respect to social media?

Social media poses a new, albeit similar situation to the above. You need to be aware that the insurance adjusters, investigators and attorneys will look around. How can you respond? First, consider that whatever you post on Facebook, MySpace, Twitter and LinkedIn can and will be monitored by the defense. If you post something, or are tagged, it is likely to be discovered. Second, using Google, what can one find about you? Your website, YouTube videos and any other hits, will be discovered.

What can you do? You can take down or deactivate accounts. You can refrain from posting on your accounts while you are injured and recovering. Do not post photographs or videos. You can adjust privacy settings to the highest levels. You should not discuss your accident, medical condition, medical treatment, and recovery on any public media. Further, be sure that your friends and family are not providing information about you on social media. You should not discuss medication publically. You should not mention your activities, or lack of activities, as activity level is especially monitored as a function of how much better you are at various points of time. You should never accept friend requests from folks you do not know.

Don't think that you can outsmart the insurance defense attorneys by strategically posting. If you post an accurate picture of yourself in the hospital, or sitting gloomily whilst recovering from your injuries, there may be comments by friends. You may be asked about those friends in a deposition; and they may become witnesses. Why give all of that information to someone whose sole job is to discredit you and find holes in your case?

I have been litigating personal injury and motor vehicle injury cases in Massachusetts since 1985. As a Boston injury attorney, I have learned that the only way to effectively counteract the insurance company approach is to be aggressive in preparation. Call us at 617227-7423 anytime to discuss your case.

Back on November 21, 2010, our blog http://www.bostonbankruptcylawyerblog.com/ had a report about Four Loko in Massachusetts, which was about to be banned by the Massachusetts Alcoholic Beverages Control Commission. Now, we are looking at the new phenomenon, AeroShot. College students in Massachusetts, and elsewhere, are trying the new caffeine delivery system.

AeroShot, from the Cambridge, Massachusetts company Breathable Foods and manufactured in France, is now available in Massachusetts and other states, for about $3 a tube. It looks like a lipstick tube and contains 100 milligrams of caffeine and B vitamins. The canister contains about six shots of lemon lime flavored power, for a total of zero calories. The powder dissolves in your mouth. While the promoters say the product is simply caffeine without the coffee, or sugar (such as with Red Bull), others are warning that it may be utilized when consuming alcohol.

For example, if you drink multiple cups of coffee, you are not likely to be consuming alcohol as well. Moreover, it takes a while. However, if you are consuming alcohol, popping the Aeroshots is easy and quick. While the packaging says not to use more than three puffs per day, it's hard to know how consumption will actually work, especially on college campuses where experimentation with drugs, alcohol and caffeine has historically occurred.

The product was developed by Harvard professor of biomedical engineering David Edwards, who has developed other breathable foods, including chocolate, and medications. He has developed inflatable insulin for medical purposes. His goals are to find synergies between products, art and design. His work focus a lot on how to get different flavors incorporated in similar biodegradable canisters, including chocolate another foods and drinks.

While Dr. Edwards need not worry about the effects of AeroShot, and the delivery system is quite brilliant, we need to be vigilant as Massachusetts consumers of the use and how it affects those who drink and then, of course, drive. Like Four Loko, giving individuals the perception that their consumption of alcohol is not as high as it actually is, can be dangerous. This is especially true with new products. The excitement of the novelty needs to be balanced with the concern for its use.

The product is clearly starting off with controversy. Senator Schumer of New York has asked the Food and Drug Administration to review the product, and the American Academy of Pediatrics has criticized the "party drug" promotion. As a Massachusetts injury lawyer, I wonder about the effects on alcohol and driving. On the other hand, Dr. Edwards' products may actually deliver nutrition and medicine via breathing! Getting a flavor experience without calories, or with nominal calories, may be on the forefront of science. For example, breathing medicine avoids the safety concerns of consumption into the gastrointestinal tract or into the lungs. With a lab in Paris, called ArtScience Lab, Dr. Edwards is working on other products. Of course this is very controversial now, but the potential uses of the product (not the caffeine, but the delivery system) seem fascinating.

In an important decision by the Massachusetts Supreme Judicial Court last week, it was determined that the insurance companies used unfair settlement schemes against a victim of a Massachusetts auto accident. As a result, the Court determined that is was necessary to double the jury verdict against the insurance companies. Under the law, insurance carriers are required to make prompt and fair settlement offers, or they will be subject to double to treble damages.

In this case, Rhodes et al v. AIG Insurance et al, SJC-10911, decided on February 10, 2012, a Massachusetts tractor-trailer rear-ended Marcia Rhodes' car in 2002. The crash was so severe that Ms. Rhodes fractured her spinal cord, resulting in paraplegia, multiple broken ribs and other injuries. She was hospitalized for months, and returned to the hospital twice for injury related treatment. Her medical bills exceeded $413,000; her out of pocket expenses were $83,984; and, future expected medical bills were expected to exceed $2,000,000.

Ms. Rhodes and her family retained a Massachusetts injury lawyer and filed a claim against the driver, his employer, and the owner of the vehicle. The insurance companies for those entities hired Crawford & Company to "adjust" the claim. Crawford investigated and determined that, indeed, the claim was valid and that the value was between $5 million and $10 million. Unfortunately, the insurance companies, Zurich, GAF and AIG, refused to make any offer of settlement. (Zurich actually tendered their $2 million policy to the lead insurance companies, and was not ultimately responsible for 93A violations.) Even after the driver plead guilty to the criminal act of operating to endanger, the insurance companies refused to make any reasonable offer settlement offer - they offered nothing near what their own adjusting company recommended.

Wherefore, Ms. Rhodes and her family were forced to try their case. A jury verdict of $11.3 million in September 2004 was rendered. This was, in the ballpark of what the insurance adjusting company had recommended. The law that when a victim receives a judgment on a case and the insurance company is later determined to have refused to make a fair settlement offer, the trial judge may make a finding of violations of Chapter 176d and Chapter 93A and double or triple the verdict as damages for that violation. The judge did so. Thus, the Rhodes family was entitled to $22 million, plus attorney fees, pursuant to 93A and 176d.

The insurance companies appealed. In the Rhodes case, the higher courts, the Appeals Court and the Supreme Judicial Court, were looking at the proper measure of damages. That is, they were not looking at the validity or amount of the jury verdict, nor were they looking at the trial judge's determination that the insurance companies failed to make a fair offer of settlement. They were charged with making a determination as to how to calculate damages against the insurance companies for having clearly violated the settlement law in Massachusetts. The insurance companies, of course, were advocating that damages be calculated to give the victims the minimum amount of money following the 93A verdict. They posited various theories, however, the SJC rejected them.

The SJC looked at the 1989 amendment to Chapter 93A which said that following a finding of 93A violation, the Court "shall" find "up to three but not less than two times such amount...[if the act] was a willful or knowing violation...[and the award] shall be the amount of the judgment on all claims..."

This case serves as an example of how insurance companies often operate in Massachusetts. In a case where liability, or responsibility, is contested, such as an intersection collision where both drivers say they had the green light, they can await a jury verdict as to responsibility. However, when liability is clear, as it was in the Rhodes case, Chapter 176D requires them to "effectuate prompt, fair and equitable settlement" of victims claims. Chapter 93A offers a remedy if they do not offer such settlement: multiple damages and attorney fees.